| People v McCoy |
| 2011 NY Slip Op 08779 [89 AD3d 1110] |
| November 29, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v IsaiahMcCoy, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered February 10, 2009, convicting him of criminal possession of a weapon in the second degreeand reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the trial court's questioning during defense counsel's cross-examinationof a witness is unpreserved for appellate review (see People v Charleston, 56 NY2d 886, 888[1982]; People v Rivers, 85 AD3d826 [2011], lv denied 17 NY3d 821 [2011]; People v Bembury, 14 AD3d 575, 576 [2005]). In any event, while thecourt, at times, took an active role in the questioning during cross-examination, its conduct, "measuredboth qualitatively and quantitatively" (People v Yut Wai Tom, 53 NY2d 44, 55 [1981]), didnot deprive the defendant of a fair trial (seePeople v Rivers, 85 AD3d 826 [2011]; People v Perez, 30 AD3d 542 [2006]; People v Bembury, 14AD3d at 576). Any potential prejudice to the defendant was minimized by the trial court's instructionsadvising the jury that the trial court had no opinion concerning the case (see People v Rivers, 85 AD3d 826[2011]; People v Charles-Pierre, 31AD3d 659, 660 [2006]; People v Bembury, 14 AD3d at 576).
The defendant's contention that the prosecutor improperly vouched for an eyewitness during hissummation is without merit. The challenged remarks were responsive to defense counsel's summation(see People v Carey, 67 AD3d 925[2009]). The defendant's remaining contentions that he was deprived of a fair trial by certain otherremarks made by the prosecutor during summation are unpreserved for appellate review (seeCPL 470.05 [2]; People v Romero, 7NY3d 911, 912 [2006]; People v Tonge, 93 NY2d 838, 838-839 [1999]). In any event,the challenged remarks were either fair comment on the evidence adduced at trial or responsive todefense counsel's summation (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Jones, 76 AD3d 716, 717[2010]; People v Diaz, 59 AD3d459, 459-460 [2009]). Angiolillo, J.P., Hall, Austin and Miller, JJ., concur.